dissenting:
Jose Robles-Vertiz was convicted of illegal transportation of aliens. In order to obtain that conviction, the district court allowed the government to introduce into evidence Robles-Vertiz’s prior 1996 conviction for illegal transportation of aliens. A violation of Federal Rule of Evidence 404(b) could not be more blatant. Rule 404(b) provides in pertinent part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....
The majority too easily accepts the government’s assertion that the evidence was admissible to show the absence of mistake or accident as allowed under Rule 404(b). According to the government the prior conviction was relevant and admissible to undercut Robles-Vertiz’s defense that he believed Guerrero was a United States citizen and thus spoke directly to intent. I fail to see how a prior conviction for illegally transporting aliens has any probative value as to whether Robles-Vertiz believed Guerrero was a United States citizen. Surely there were other ways to attack this defense, for example, through Trejo’s testimony. See United States v. Baldarrama, 566 F.2d 560, 568 (5th Cir.1978) (holding that the government must also show a reasonable necessity for the use of a prior conviction because prior crime evidence has a significant potential for prejudicial effect). Evidence of the prior conviction showed conformity — nothing more. Admission of such evidence is not allowed under Rule 404(b).
Additionally, there could not be a more prejudicial piece of evidence introduced at trial than the prior conviction for the same offense for which Robles-Vertiz was charged. The majority glosses over the prejudicial impact of this evidence by concluding that because the evidence is probative with respect to absence of mistake, it exceeds any possible prejudicial effect. I cannot agree. Accordingly, I respectfully dissent.